Citation Nr: 0800998
Decision Date: 01/10/08 Archive Date: 01/22/08
DOCKET NO. 05-32 252 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for a right ear hearing
loss.
2. Entitlement to service connection for hypertension.
3. Entitlement to service connection for peripheral
neuropathy of the upper and lower extremities, bilaterally.
4. Entitlement to an initial disability rating in excess of
30 percent for post traumatic stress disorder (PTSD).
5. Entitlement to an initial disability rating in excess of
10 percent for residuals of a fragment wound of the dorsal
spine, with degenerative changes.
6. Entitlement to an initial disability rating in excess of
10 percent for residuals of a fragment wound of the left
wrist, with retained metallic foreign body.
7. Entitlement to an initial compensable disability rating
for diabetic retinopathy.
8. Entitlement to an initial compensable disability rating
for a left ear hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Clifford R. Olson, Counsel
INTRODUCTION
The veteran's active military service extended from October
1967 to October 1969.
This matter comes before the Board of Veterans' Appeals
(Board) from the Department of Veterans Affairs (VA) Regional
Office (RO) in Cleveland, Ohio.
An April 2004 RO decision granted service connection for
PTSD, rated as 30 percent disabling, as well as a left ear
hearing loss, dorsal spine wound, and left wrist wound, rated
as noncompensable. The April 2004 RO decision denied service
connection for a right ear hearing loss. Service connection
for peripheral neuropathy was denied by the RO in May 2005.
The May 2005 RO decision granted service connection for
diabetic retinopathy, rating it as part of the diabetes
mellitus and continuing the 20 percent rating for that
disability. A June 2005 RO statement of the case granted 10
percent ratings for the dorsal spine and left wrist wounds.
In November 2005, the veteran had a hearing before a decision
review officer at the RO. In May 2007, a hearing was held at
the RO before the undersigned Veterans Law Judge.
In a signed statement dated in November 2005, the veteran
expressed a desire to withdraw the issues on appeal of
evaluation of left ear hearing loss, currently rated
0 percent disabling; service connection for a right ear
hearing loss, a left knee condition, a left hip condition,
and hypertension. The RO hearing at the time did not discuss
those issues. However, on the May 2007 Board hearing, it was
explained that the veteran wished to pursue a higher rating
for the left ear hearing loss, as well as service connection
for the right ear hearing loss, and hypertension. The Board
accepts the veteran's explanation and finds that these issues
have not been withdrawn and are appropriately before it.
The issue of entitlement to service connection for
hypertension is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A right ear hearing loss was first manifested many years
after service and the competent medical evidence establishes
that it is not related to the veteran's active service.
2. The medical evidence establishes that the veteran does
not have peripheral neuropathy of the upper and lower
extremities, bilaterally, as the result of active service or
service-connected disease or injury.
3. The veteran's service-connected PTSD is, and has been,
manifested by complaints of difficulty sleeping; blunted
affect; pressured, circumstantial and tangential speech;
racing thoughts; some flight of ideas and ideas of reference.
There is no persuasive evidence of record establishing that
the veteran has suffered from PTSD productive of occupational
and social impairment with reduced reliability and
productivity due to such symptoms as flattened affect,
circumstantial, circumlocutory, or stereotyped speech, panic
attacks more than once a week, difficulty in understanding
complex commands, impairment of short- and long-term memory,
impaired judgment and abstract thinking, disturbances of
motivation and mood, and difficulty in establishing and
maintaining effective work and social relationships.
4. The service-connected residuals of a fragment wound of
the dorsal spine, with degenerative changes are manifested by
limitations of motion that are no more than moderate with
forward flexion to 90 degrees and a combined range of motion
of 190 degrees. There are no neurologic or muscle deficits
and the residual scar is asymptomatic.
5. The service-connected residuals of a fragment wound of
the left wrist, with retained metallic foreign body are
manifested by a moderate muscle injury without painful
scarring, muscle damage, loss of strength or objective
evidence of muscle deficits.
6. The service-connected diabetic retinopathy is manifested
by minimal residual scarring from laser treatment. The
veteran's worst best corrected visual acuity is 20/25 in the
right eye and 20/30 in the left eye. There is no scarring,
atrophy or irregularity that results in irregular,
duplicated, enlarged or diminished images. There is no
limitation of the field of vision.
7. The service-connected left ear hearing loss is manifested
by a pure tone threshold average of 40 decibels with
discrimination ability of 80 percent (numeric designation
III).
CONCLUSIONS OF LAW
1. A right ear hearing loss was not incurred in or
aggravated by active military service and may not be presumed
to have been incurred in service. 38 U.S.C.A. §§ 101(16),
1101, 1110, 1112 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.303, 3.307, 3.309, 3.385 (2007).
2. Peripheral neuropathy of the upper and lower extremities,
bilaterally, was not incurred in or aggravated by active
military service, may not be presumed to have been incurred
in service, and is not proximately due to or the result of
service-connected disease or injury. 38 U.S.C.A. §§ 101(16),
1101, 1110, 1112 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.303, 3.307, 3.309, 3.310(a) (2007).
3. The criteria for an initial disability rating in excess
of 30 percent for PTSD have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.10,
4.21, 4.130, and Part 4, Diagnostic Code 9411 (2007).
4. The criteria for an initial disability rating in excess
of 10 percent for residuals of a fragment wound of the dorsal
spine, with degenerative changes, have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.400, 4.3,
4.7, 4.10, 4.14, 4.21, 4.55, 4.56, 4.71a, 4.73, 4.118, and
Part 4, Diagnostic Codes 5242, 7805 (2007).
5. The criteria for an initial disability rating in excess
of 10 percent for residuals of a fragment wound of the left
wrist, with retained metallic foreign body, have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§
3.400, 4.3, 4.7, 4.10, 4.14, 4.21, 4.55, 4.56, 4.71a, 4.73,
4.118, and Part 4, Diagnostic Code 5308 (2007).
6. The criteria for an initial separate compensable
disability rating for diabetic retinopathy have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.400,
4.3, 4.7, 4.10, 4.14, 4.21, 4.75, 4.76, 4.84a, and Part 4,
Diagnostic Codes 6011, 6079 (2007).
7. The criteria for an initial compensable disability rating
for a left ear hearing loss have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.400, 4.3, 4.10,
4.14, 4.21, 4.85, and Part 4, Diagnostic Code 6100 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). This notice must be provided prior to an
initial unfavorable decision on a claim by the agency of
original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App.
112 (2004).
Here, the duty to notify was satisfied by way of a letter
sent to the veteran in September 2003 (service connection for
issues including PTSD, diabetes mellitus, hearing loss, left
wrist condition, and back condition) and December 2004
(service connection for neuropathy) that fully addressed all
four notice elements and were sent prior to the initial AOJ
decision in these matters. The VCAA notice letter informed
the veteran of what evidence was required to substantiate the
claims and of the veteran's and VA's respective duties for
obtaining evidence. The veteran was also asked to submit
evidence and/or information in his possession to the AOJ.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims (Court) held that, upon
receipt of an application for a service-connection claim,
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to
review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim,
including notice of what is required to establish service
connection and that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded. Shortly after the Court's decision,
the RO provided the required notice in a March 2006 letter
and, again, in an April 2006 statement of the case.
Here, the veteran is challenging several initial evaluations
assigned following the grant of service connection. In
Dingess, the Court of Appeals for Veterans Claims held that
in cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service-connection claim has been more
than substantiated, it has been proven, thereby rendering
section 5103(a) notice no longer required because the purpose
that the notice is intended to serve has been fulfilled. Id.
at 490-91. Thus, because the notice that was provided before
service connection was granted was legally sufficient, VA's
duty to notify in this case has been satisfied.
The veteran is also challenging that part of the decision
that denied some claims for service connection. Although the
initial notice did not address either the rating criteria or
effective date provisions that are pertinent to these claims,
such error was harmless given that service connection is
being denied, and hence no rating or effective date will be
assigned with respect to these claimed conditions.
VA also has a duty to assist the veteran in the development
of the claims. This duty includes assisting the veteran in
the procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained VA and private
treatment records and the veteran has been examined.
Significantly, neither the veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the veteran is required to
fulfill VA's duty to assist the veteran in the development of
the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
Service Connection
In order to establish service connection, three elements must
be established. There must be medical evidence of a current
disability; medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See 38 U.S.C.A. §§ 101(16), 1110 (West 2002); 38
C.F.R. § 3.303 (2007); see also Hickson v. West, 12 Vet. App.
247, 253 (1999).
Service connection may also be granted for a disability which
is proximately due to and the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a) (2007).
In the case of any veteran who engaged in combat with the
enemy in active service with a military, naval, or air
organization of the United States during a period of war,
campaign, or expedition, the Secretary shall accept as
sufficient proof of service-connection of any disease or
injury alleged to have been incurred in or aggravated by such
service satisfactory lay or other evidence of service
incurrence or aggravation of such injury or disease, if
consistent with the circumstances, conditions, or hardships
of such service, notwithstanding the fact that there is no
official record of such incurrence or aggravation in such
service, and, to that end, shall resolve every reasonable
doubt in favor of the veteran. Service-connection of such
injury or disease may be rebutted by clear and convincing
evidence to the contrary. The reasons for granting or
denying service-connection in each case shall be recorded in
full. 38 U.S.C.A. § 1154(b) (West 2002).
The implementing regulation provides: Satisfactory lay or
other evidence that an injury or disease was incurred or
aggravated in combat will be accepted as sufficient proof of
service connection if the evidence is consistent with the
circumstances, conditions or hardships of such service even
though there is no official record of such incurrence or
aggravation. 38 U.S.C.A. §1154(b) (West 2002); 38 C.F.R.
§ 3.304(d) (2007).
The phrase "engaged in combat with the enemy" requires that
the veteran have personally participated in events
constituting an actual fight or encounter with a military foe
or hostile unit or instrumentality. VAOPGCPREC 12-99,
October 18, 1999. The veteran's service record documents the
award of the Purple Heart, Combat Infantryman Badge, Army
Commendation Medal, and Bronze Star Medal with V (for Valor)
device. Based on these combat awards, the Board recognizes
the veteran's combat service.
Right Ear Hearing Loss
What constitutes a hearing loss disability is defined by
regulation. For the purposes of applying the laws
administered by VA, impaired hearing will be considered to be
a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent.
38 C.F.R. § 3.385 (2007).
The veteran contends that he incurred a hearing loss in the
right ear as the result of noise exposure during combat.
On audiometric testing on entrance, in October 1967, decibel
losses at 500, 1000, 2000, and 4000, were 0 in each ear.
The service medical records document a fragment wound to the
right parotid area during a mortar attack in May 1968.
Parotid means near the ear. Dorland's Illustrated Medical
Dictionary1235 (28th ed., 1994).
On separation examination, in September 1969, the veteran's
ears and drums were normal. Speech recognition was not
tested. Audiologic evaluation disclosed the following pure
tone thresholds, in decibels:
HERTZ
500
1000
2000
4000
RIGHT
20
5
10
0
LEFT
15
15
15
45
A sensorineural hearing loss may be presumed to have been
incurred during active military service if it is manifest to
a degree of 10 percent within the first year following active
service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.307, 3.309 (2007). In this case, there is no
competent evidence of a right ear hearing loss in the year
after the veteran finished his active service.
On VA audiometric examination in February 2004, the examiner
noted that the claims folder was reviewed. The veteran's
post service history was also discussed, as was his tinnitus.
Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
Average
RIGHT
25
30
25
25
40
30
LEFT
20
25
25
40
70
40
Speech audiometry revealed speech recognition ability of 84
percent in the right ear and of 80 percent in the left ear.
The diagnosis was mild high frequency sensorineural hearing
loss, bilaterally. The examiner expressed an opinion to the
effect that tinnitus was due to noise exposure in service.
The examiner also expressed the opinion that it was not
likely that the hearing loss in the right ear was the result
of any activity during service. He explained that his
conclusion was based on the separation hearing test of
September 1969 that revealed normal hearing in the right ear.
On the other hand, the examiner felt it was as likely as not
that the hearing loss in the left ear was the result of
exposure to noise while in service. That conclusion was
based on the decrease in hearing at 4000 Hertz, in the left
ear, in September 1969 as compared to the entrance
examination in 1967.
Based on the opinion from the February 2004 audiometric
examination, the RO granted service connection for tinnitus
and a left ear hearing loss, while denying service connection
for a right ear hearing loss.
At his May 2007 Board hearing, the veteran testified to the
effect that his right ear was exposed to the noise of gunfire
during combat.
Conclusion
The veteran contends that he incurred a right ear hearing
loss during his combat service, as well as a left ear hearing
loss and tinnitus. However, audiometric testing on the
separation examination provides competent medical evidence
that a right ear hearing loss was not present in service.
This overcomes any presumption that a right ear hearing loss
may have been incurred in combat.
Following the normal right ear finding at the end of the
veteran's active service, over 34 years passed without any
competent medical documentation of a right ear hearing loss.
Evidence of a prolonged period without medical complaint and
the amount of time that elapsed since military service, can
be considered as evidence against the claim. Maxson v.
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
The Board recognizes the veteran's gallant combat service and
the injuries he incurred during that service. However, he
does not have the medical training or experience to link his
current right ear hearing loss to service, including the
noise exposure and injuries in service. The only competent
medical opinion on the question of a connection was to the
effect that it was not likely. That opinion is convincing
because it comes from a trained medical professional and
considered the claims folder and service medical records. It
is supported by the separation examination and the passage of
many years since service. Thus, the Board finds the
preponderance of evidence is against the claim. As the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not applicable and the
appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.
3d 1361 (Fed. Cir. 2001).
Peripheral Neuropathy of the Upper and Lower Extremities,
Bilaterally
The service medical records do not reflect any peripheral
neuropathy of either upper or lower extremities. The
veteran's neurologic status was normal on examination for
separation from service in September 1969.
A neurologic disorder may be presumed to have been incurred
during active military service if it is manifest to a degree
of 10 percent within the first year following active service.
38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2007). In this case, there is no competent medical
evidence of any neurologic disability in the first post
service year or for many years thereafter.
In March 2005, the veteran was examined by VA to determine
whether his neurologic deficits were the result of his
service-connected diabetes mellitus. The veteran, aged 58,
reported the onset of diabetes at age 34. Ketoacidosis or
hypoglycemic reactions had not been frequent or required
hospitalization. He was on a low carbohydrate diet. He had
an 8 pound weight gain since 2003. There was no restriction
of activities on account of diabetes. He treated the
condition with pills twice a day and saw his diabetic care
provider 4 times a year. He denied other symptoms, such as
anal pruritus or loss of muscle strength. Visual problems
were noted. He complained of having numbness and tingling in
the hands and feet. He stated that it had been present over
the years. He stated that it became worse in the feet with
prolonged walking or standing. It became worse in the hands
with any type of repetitive movement, writing or computer
work.
Examination showed the veteran's hands were warm to the touch
and had normal hair distribution. Nails were normal. Radial
and ulnar pulses were 2/2. There was some decreased
sensation in the palmar aspect of both hands and the distal
aspects of all the digits with monofilament testing.
Vibratory sense was intact. Proprioception was intact.
Examination of both feet showed them to be warm to the touch
and have decreased hair distribution. Dorsalis pedis and
tibial pulses were 1/2. No ulcerations were present. There
was decreased sensation to the plantar aspects of both feet
and plantar aspects of all digits with monofilament testing.
Vibratory sense and proprioception were intact. The
diagnoses were diabetes mellitus, type 2; and peripheral
neuropathies of the upper and lower extremities. As to
whether the neuropathies were related to the service-
connected diabetes, the examiner expressed the opinion that
it was more likely than not that the neuropathies of the
upper and lower extremities were more likely related to the
veteran's long history of alcohol and substance abuse.
The veteran disagreed with that analysis. He submitted a
letter from his wife, dated in August 2005, to the effect
that her husband was not an alcoholic and had not abused
alcohol.
At his May 2007 Board hearing, the veteran testified
describing the symptoms of his peripheral neuropathy and how
it limited his activities. He stated that his doctors had
related it to his diabetes.
Conclusion
The service medical records and the passage of many years
without any medically documented complaints establish by a
preponderance of evidence that the veteran's current
neuropathy was not incurred or aggravated during his active
service. As to his claim that it is due to his service-
connected diabetes, what causes a disability is a medical
question that requires the opinion from a trained medical
professional. 38 C.F.R. § 3.159(a) (2007). Although the
veteran has asserted that his doctors have related it to his
service-connected diabetes mellitus, there is no medical
opinion supporting the veteran's position. That is, there is
nothing in the private or VA medical records or examination
reports that connects his neuropathy to his service-connected
diabetes or any other service-connected disability or aspect
of his active service. To the contrary, the only medical
opinion on point is against the claim, noting that the
neuropathy is most likely due to substance abuse. The
veteran disputes that assessment, but this assessment is
supported throughout the medical record. On the February
2004 VA examination, the primary diagnoses included alcohol
dependence. The Board finds the recent denial by the veteran
and his spouse are unconvincing in light of the record. The
competent medical evidence of record outweighs the veteran's
claim and establishes by a preponderance of evidence that his
neuropathy is not due to his service-connected diabetes
mellitus. As the preponderance of the evidence is against
the claim, the benefit of the doubt doctrine is not
applicable and the appeal must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert; Ortiz.
Increased Ratings
Disability ratings are determined by the application of the
Schedule for Rating Disabilities, which assigns ratings based
on the average impairment of earning capacity resulting from
a service-connected disability. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. Where there is a question as to which of
two ratings shall be applied, the higher rating will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
PTSD
The General Rating Formula for Mental Disorders, including
PTSD, is:
* Total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of
hurting self or others; intermittent inability to perform
activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or
place; memory loss for names of close relatives, own
occupation, or own
name...............................................................................
....100 percent;
* Occupational and social impairment, with deficiencies in
most areas, such as work, school, family relations,
judgment, thinking, or mood, due to such symptoms as:
suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function
independently, appropriately and effectively; impaired
impulse control (such as unprovoked irritability with
periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting
to stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships..................................................
...................70 percent;
* Occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment
of short- and long-term memory (e.g., retention of only
highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking;
disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.........................................................50 percent;
* Occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although
generally functioning satisfactorily, with routine
behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or less often),
chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent
events)..............................................................................30
percent;
* Occupational and social impairment due to mild or
transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods
of significant stress, or; symptoms controlled by
continuous
medication.....................................................
............................10 percent;
* A mental condition has been formally diagnosed, but
symptoms are not severe enough either to interfere with
occupational and social functioning or to require
continuous
medication...................................................
........0 percent.
38 C.F.R. § 4.130, Code 9411 (2007).
The evidence contains VA and private clinical notes, but they
will only be discussed as they provide some insight into the
severity of the service-connected PTSD.
On the February 2004 VA examination, the veteran's claims
folder as reviewed and his post service functioning
discussed, along with current symptoms. A clinical
interview, mental status examination, and psychological
testing were done. His mood during the interview was labile
and erratic, which is more in keeping with the depressed mood
associated with a 30 percent rating and does not approximate
the flattened affect associated with a 50 percent rating.
Flow of speech was normal, not showing the deficits of
circumstantial, circumlocutory, or stereotyped speech
required for a 50 percent rating. There was no evidence of
panic attacks, difficulty in understanding complex commands,
impairment of short- or long-term memory. He did present
with poor hygiene and had a vague interpersonal style. His
judgment was immature. Regarding his insight, he was at
times blindly uncritical of his own behavior. He was
oriented and psychomotor behavior was within normal limits.
His discussion tended to be chaotic, digressive and often
contradictory. He was unable to provide an intact sequential
and logical history. His report was characterized by over
verbalization with little substantive content. There was no
suicidal or homicidal ideation, delusions or hallucinations.
These findings on the February 2004 VA examination most
closely approximate the criteria for a 30 percent rating and
do not approximate the criteria for any higher evaluation.
Psychological testing did not reveal any of the criteria for
a higher rating. The examiner noted that the veteran's test
responses were most often found among persons who are
consciously exaggerating in order to receive benefits or
financial gain. The concluding diagnoses were alcohol
dependence, methamphetamine abuse, and PTSD.
The February 2004 VA examination concluded with a GAF score
of 60. The global assessment of functioning (GAF) is a scale
reflecting the psychological, social and occupational
functioning on a hypothetical continuum of mental health-
illness. Diagnostic and Statistical Manual of Mental
Disorders 32 (4th ed. 1994). See Carpenter v. Brown, 8 Vet.
App. 240, 243 (1995). A GAF from 51 to 60 is defined as
moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g. few
friends, conflicts with co-workers). Disabilities are not
rated on GAF scores, but on the objective findings evaluated
in accordance with the rating criteria set forth above. The
GAF score of 60 is at the least symptomatic end of the
moderate range, approaching the mild range, and does not
provide evidence supporting a rating in excess of 30 percent.
The veteran had another VA mental examination in March 2006.
The claims file and medical records were reviewed and the
veteran was interviewed. The veteran denied any significant
changes since the February 2004 VA examination. He felt that
the level of financial compensation for his PTSD was
inadequate. He was alert and oriented, although unkempt in
dress and grooming. He reported his mood as anxious at a
level of 10 on a 10 point scale. However, he demonstrated a
calm affect and did not demonstrate any distress.
Intelligence was average. Insight and judgment were poor.
He was uncooperative throughout the interview. Attempts to
gather information as to his current functioning, symptoms,
and any change in PTSD symptoms were met with evasive
comments or efforts to change the subject. For example, when
asked about current employment, he stated that no one would
hire a Vietnam veteran and that while he had no income, he
supported himself by "hustling." When asked about his
current living situation, he reported that he "more or
less" lived with his wife. He provided conflicting
information in areas including his drinking behavior. He
denied symptoms of alcohol dependence but then reported
"self-medication." He made differing reports on both
alcohol and drug use.
The examiner reported that the veteran also attempted to
feign a variety of symptoms and present himself as
significantly disabled. Upon mental status questions he
reported an inability to identify the date, "I never know
the date." When a mini-mental status examination was
performed, he scored 26/30 and the items missed were
suggestive of a lack of effort or feigning of memory related
symptoms, rather than cognitive impairment. He did not
appear to have deficits in memory. In addition he highly
exaggerated other symptoms. These included reports that he
never slept to avoid nightmares and constantly had panic
attacks. On attempts to evaluate the presence or absence of
other symptoms, the veteran made vague references endorsing
severe pathology that, when clarification was attempted, he
responded with more vague reports and avoided specific
examples of behavior. When requested to complete
psychological testing, he asserted that it would be a waste
of time and declined the opportunity. The diagnosis was
malingering and the examiner was unable to assess the GAF
score.
Although the examiner clearly tried, because of the veteran's
lack of candor and cooperation, there is simply nothing in
the report of the March 2006 VA mental examination that would
document any manifestations consistent with a rating in
excess of 30 percent.
The veteran was seen for psychiatric medication management,
in April 2006. He was talkative and stated that he was
seeking an upgrade of VA compensation. He stated that
morning was the most stressful time. He described himself as
a workaholic in the past, and that "everyone loved me." He
was currently unemployed. His last job had been as a
subcontractor for a university 2 years earlier. He often
laughed inappropriately while talking of his experiences. On
mental status examination, he was casually groomed with a
good mood. His mood was reported to be up and down. His
affect was consistent with his mood. Rapport was adequately
established. His conversation was organized with no evidence
of a formal thought disorder. There was no evidence of
psychomotor agitation or slowing. Speech was pressured. The
rate, volume and rhythm were within normal limits. He
reported that he stayed awake for numerous reasons and he
could not relax to sleep. He answered sleep questions by
repeatedly referring to Vietnam. He needed improved insight
and judgment. In the assessment it was noted that the
veteran had a diagnosis of PTSD and was being seen for an
initial medication management appointment. His speech was
pressured and he reported a long history of inability to
sleep. He endorsed some grandiosity. The diagnoses were
rule out malingering, PTSD by history, and rule out bipolar
disorder.
The GAF in April 2006 was 50. A GAF of 41 to 50 is defined
as "Serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job)." DSM-IV, at 32;
Richard v. Brown, 9 Vet. App. 266, 267 (1996). 50 would be
at the least serious end of the range.
The psychiatric medication management note of May 2006 shows
the veteran presented with a polite demeanor and organized
conversation. He described himself as a morning person,
which was noted to be contradictory of his previous report of
morning depression. He was casually groomed. His mood was
euthymic, with inappropriate laughter. His affect was
consistent with his mood. Rapport was easily established.
His conversation was organized. There was no evidence of a
formal thought disorder. There was no evidence of
psychomotor agitation or slowing. He spoke at a slightly
accelerated rate with a loud volume. Rhythm was within
normal limits. Speech was spontaneous. He reported periods
of no sleep. His insight needed improvement. The assessment
noted spontaneous conversation, which was loud, rambling, and
at times difficult to interrupt. He reported a decreased
need for sleep, distractibility, and grandiosity. He was
quite pleasant in demeanor with no irritability noted. He
denied that lack of sleep and excessive energy were problems.
He denied past hospitalizations, impaired relationships, or
difficulty in daily functioning. He endorsed some symptoms
of PTSD, but denied anger or hypervigilance. He denied
depression, anxiety, or any functional impairment. The
diagnosis as well as the treatment was unclear. The
diagnoses were rule out malingering, PTSD by history, and
rule out bipolar disorder. The GAF was 50.
A June 2006 VA psychiatry note shows the veteran had a
conflicting history of psychiatric problems and was seen for
annual evaluation and diagnosis clarification. He said he
was feeling happier because the weather was good. He
admitted drinking alcohol and using drugs in the past. He
reported that he had been depressed. He thought he felt
depression every day. He said that he did not sleep and,
then, when depressed, he would sleep 18 hours. Certain music
made him depressed. He reported that the previous week, he
went without sleep for 3 days straight, then felt depressed,
slept for 8 hours, and felt good. He admitted to
experimenting with different drugs. He still used alcohol
and marijuana.
On mental status examination, he was noted to be casually
dressed. His behavior was cooperative and polite, with eye
contact and psychomotor activity. There was no abnormal
motor movement. His speech had a normal rate. Intonation
was pressured. He was alert and oriented, with no deficits
noted. His mood was euthymic. His affect was blunted.
There were no delusions or hallucinations. Thought processes
were coherent and logical. He was very circumstantial and
tangential. He reported racing thoughts. There were some
flight of ideas and ideas of reference, but no loose
associations. Insight and judgment was fair to poor. The
diagnosis was PTSD by history; rule out mixed bipolar
disorder vs. cyclothymic disorder; rule out delusional
disorder vs. psychosis NOS (not otherwise specified);
marijuana abuse, rule out dependence; alcohol abuse, rule out
dependence; and poly substance abuse. The GAF was 45.
During his May 2007 Board hearing, the veteran testified of
symptoms including sleeplessness, awaking disoriented,
feeling stressed-out, isolation, and mood swings. He told of
avoiding war movies and having memories of his wartime
experiences.
Conclusion
The veteran feels that his service-connected PTSD should be
assigned a higher evaluation; however, he does not have the
medical training and experience to evaluate his disability.
The Board finds that the VA examination reports and clinical
records provide the most probative evidence as to the extent
of the disability and whether it approximates the criteria
for any higher rating. In this case, the objective medical
findings most closely approximate the criteria for a 30
percent rating and do not approximate any criteria for a
higher evaluation. 38 C.F.R. § 4.7. The Board notes the
various GAF scores. Psychiatric disabilities are not rated
on GAF scores but on objective symptomatology as shown on
mental evaluation. The functional impairment estimated by
the GAF scores are not inconsistent with the current 30
percent rating and does not establish that a higher rating is
warranted. The numerous medical reports form a preponderance
of the evidence that is against the claim. Consequently, the
benefit of the doubt doctrine is not applicable and the
appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert;
Ortiz.
The Board has considered the issues raised by the Court in
Fenderson v. West, 12 Vet. App. 119 (1999), and whether
staged ratings should be assigned. A 30 percent rating has
been assigned from the date the claim was received, the
earliest date allowed by law. 38 U.S.C.A. § 5110 (West
2002); 38 C.F.R. § 3.400 (2007). The competent medical
evidence shows that at no time since the claim was received
has the disability exceeded the criteria for a 30 percent
rating.
Residuals of a Fragment Wound of the Dorsal Spine, with
Degenerative Changes
Review of the history of the wound shows that it was not
documented in the service medical records. The service
medical records do document a fragment wound to the right
parotid area, in June 1968, when the veteran was wounded
during an enemy mortar attack. Notes, dated in September
1969, show that the veteran had been wounded in Vietnam
months earlier and had a retained foreign body in his left
wrist. The September 1969 separation examination indicated
the veteran's spine to be normal. In his July 2003 claim,
the veteran reported that his wounds include his back. The
RO has assigned a 10 percent rating effective the date the
claim was received, in July 2003.
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court
discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to
examinations of joint motion. 38 C.F.R. § 4.40 listed
several factors to consider in evaluating joints including
inability to perform the normal working movements of the body
with normal excursion, strength, speed, coordination and
endurance. Functional loss due to pain was a consideration,
as well as weakness, which was an important consideration in
limitation of motion. 38 C.F.R. § 4.40 (2007). As regards
the joints, the factors of disability reside in reductions of
their normal excursion of movements in different planes.
Inquiry will be directed to these considerations: (a) Less
movement than normal; (b) More movement than normal; (c)
Weakened movement; (d) Excess fatigability; (e)
Incoordination, impaired ability to execute skilled movements
smoothly; (f) Pain on movement, swelling, deformity or
atrophy of disuse; instability of station, disturbance of
locomotion, interference with sitting, standing and weight-
bearing are related considerations. 38 C.F.R. § 4.45 (2007).
The current 10 percent is the maximum rating that could be
assigned under 38 C.F.R. § 4.71a, Code 5003 (2007) for
degenerative changes confirmed by X-ray findings, with a
limitation of motion. A higher rating would have to be
assigned under the rating code for the specific joint or
joints involved.
Prior to September 26, 2003, a limitation of dorsal or
thoracic spine motion was rated as noncompensable where
slight, 10 percent disabling where moderate, and 10 percent
disabling where severe. 38 C.F.R. Part 4, Code 5291 (2003).
The RO assigned the maximum 10 percent rating, effective the
date the claim was received in July 2003.
Generally, in a claim for an increased rating, where the
rating criteria are amended during the course of the appeal,
the Board considers both the former and the current schedular
criteria because, should an increased rating be warranted
under the revised criteria, that award may not be made
effective before the effective date of the change. See Kuzma
v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the
extent it held that, where a law or regulation changes after
a claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version more favorable to veteran should apply). See
also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000
(April 10, 2000); 38 U.S.C.A. § 5110(g) (West 2002); 38
C.F.R. § 3.114 (2007).
Effective September 26, 2003, the thoracic spine is rated
with the lumbar spine. The General Rating Formula for
Diseases and Injuries of the Spine will be as follows, with
or without symptoms such as pain (whether or not it
radiates), stiffness, or aching in the area of the spine
affected by residuals of injury or disease:
Unfavorable ankylosis of the entire spine will be rated
as 100 percent disabling;
Unfavorable ankylosis of the entire thoracolumbar spine
will be rated as 50 percent disabling;
Unfavorable ankylosis of the entire cervical spine; or,
forward flexion of the thoracolumbar spine 30 degrees or
less; or, favorable ankylosis of the entire thoracolumbar
spine will be rated as 40 percent disabling;
Forward flexion of the cervical spine 15 degrees or
less; or, favorable ankylosis of the entire cervical spine
will be rated as 30 percent disabling;
Forward flexion of the thoracolumbar spine greater than
30 degrees but not greater than 60 degrees; or, forward
flexion of the cervical spine greater than 15 degrees but not
greater than 30 degrees; or, the combined range of motion of
the thoracolumbar spine not greater than 120 degrees; or, the
combined range of motion of the cervical spine not greater
than 170 degrees; or, muscle spasm or guarding severe enough
to result in an abnormal gait or abnormal spinal contour such
as scoliosis, reversed lordosis, or abnormal kyphosis will be
rated as 20 percent disabling;
Forward flexion of the thoracolumbar spine greater than
60 degrees but not greater than 85 degrees; or, forward
flexion of the cervical spine greater than 30 degrees but not
greater than 40 degrees; or, combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater
than 235 degrees; or, combined range of motion of the
cervical spine greater than 170 degrees but not greater than
335 degrees; or, muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal
contour; or, vertebral body fracture with loss of 50 percent
or more of the height will be rated as 10 percent disabling.
On the February 2004 VA orthopedic examination, the veteran
provided a history of a shell fragment wound to his back. He
reported that nothing was broken or fractured, he spent about
a month recovering, and was returned to duty. He reported
that he occasionally had some aching soreness. It did not
prevent normal function. There was no redness, heat,
swelling, or drainage. There were no flare-ups. Repetitive
use reportedly caused aching and soreness. Physical
examination showed a 3 centimeter wound on the dorsal spine.
There was no redness, heat, sensitivity, or tenderness. No
other swelling, redness, heat, ulceration, or damage was
noted. There was no nerve, artery, bone, or muscle damage.
There was no muscle hernia. The back had normal muscle
strength. The veteran could flex his back 95 degrees and
extend and rotate 30 degrees. He could toe and heel walk and
squat. The final diagnosis was residual shell fragment wound
to the back. X-rays disclosed osteopenia, degenerative
changes, and some minimal anterior wedging, most likely
related to osteopenia. There was no finding of a retained
foreign body or other wound residuals.
The veteran's back was examined again by VA in March 2006.
The claims file was reviewed. The history of the wound was
discussed. There was a 4 centimeter scar over the dorsal
spine. There was some slight tenderness and soreness over
the dorsal spine. There was no increased kyphosis or
scoliosis. Flexion went to 90 degrees and extension went to
20 degrees. Lateral flexion was 20 degrees to the right and
left. Lateral rotation was 20 degrees to the right and left.
There was only slight pain on extremes of motion. The
"DeLuca" factors were considered. Repetitive motion did
not cause increased aches, pains, soreness, tenderness, or
fatigability. No other changes were found on examination.
The examiner commented that any other change in the range of
motion would be speculative. No flare-ups were noted. There
was only slight tenderness and muscle spasm. Neurologically,
the reflexes, strength, and sensation were equal in both
lower extremities. There were no incapacitating episodes.
The diagnosis was residual wound to the dorsal spine with
degenerative changes.
During his May 2007 Board hearing, the veteran testified that
he continued to have back pain and that it limited his
ability to work. He had not worked in approximately 6 years.
His back pain reportedly required a course of physical
therapy about 3 or 4 years ago.
Conclusion
The veteran had been properly examined. The examiner was
able to review and consider the claims file. The "DeLuca"
factors of 38 C.F.R. §§ 4.40, 4.45 were considered in
evaluating spine function. Nevertheless, the limitation of
dorsal spine motion was minimal. It did not exceed the
moderate disability level for which the old rating code
provided a 10 percent rating. It did not exceed the range of
motion for which the new rating criteria provides a 10
percent evaluation. The neurologic findings were normal, so
there is no evidence for an additional rating for a
neurologic disorder. Note (1) following General Rating
Formula for Diseases and Injuries of the Spine, 38 C.F.R.
§ 4.71a. There is a scar, but there is no evidence that it
is painful or that it produces any other compensable
symptoms. 38 C.F.R. § 4.118. There is no evidence of any
retained foreign body or muscle loss that would meet the
criteria for a higher rating under the criteria for muscle
injuries. 38 C.F.R. §§ 4.55, 4.56, 4.73. The Board has
considered the veteran's hearing testimony and other
statements describing his symptoms. While the veteran may
feel that a higher rating is warranted, the objective
findings of the trained medical personnel are substantially
more probative in determining whether the criteria for a
higher rating have been met. In this case, the medical
findings establish by a preponderance of evidence that the
service-connected wound residuals do not approximate any
applicable criteria for an additional or higher rating.
Because the preponderance of evidence is against the claim,
the benefit of the doubt doctrine is not applicable and the
appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert;
Ortiz.
The Board has considered the issues raised by the Court in
Fenderson and whether staged ratings should be assigned. A
10 percent rating has been assigned from the date the claim
was received, the earliest date allowed by law. 38 U.S.C.A.
§ 5110 (West 2002); 38 C.F.R. § 3.400. The competent medical
evidence shows that at no time since the claim was received
has the disability exceeded the criteria for a 10 percent
rating.
Residuals of a Fragment Wound of the Left Wrist,
with Retained Metallic Foreign Body
The RO has assigned a 10 percent rating under diagnostic code
5308, effective the date that the claim was received.
Muscle Group VIII, consists of muscles arising mainly from
external condyle of humerus: the extensors of carpus,
fingers, and thumb supinator. It functions in extension of
the wrist, fingers, and thumb, and abduction of the thumb.
Injury to Muscle Group VIII will be rated as noncompensable
where slight, 10 percent disabling where moderate, and 20
percent disabling where moderately severe. A severe injury
will be rated as 20 percent disabling for the nondominant
extremity, and 30 percent disabling for the dominant
extremity. 38 C.F.R. Part 4, Code 5308 (2007). Thus, a
higher rating in this case requires a moderately severe or
severe injury to the muscles of the left wrist.
Evaluation of muscle disabilities:
(a) An open comminuted fracture with muscle or tendon
damage will be rated as a severe injury of the muscle group
involved unless, for locations such as in the wrist or over
the tibia, evidence establishes that the muscle damage is
minimal.
(b) A through-and-through injury with muscle damage
shall be evaluated as no less than a moderate injury for
each group of muscles damaged.
(c) For VA rating purposes, the cardinal signs and
symptoms of muscle disability are loss of power, weakness,
lowered threshold of fatigue, fatigue-pain, impairment of
coordination and uncertainty of movement.
(d) Under diagnostic codes 5301 through 5323,
disabilities resulting from muscle injuries shall be
classified as slight, moderate, moderately severe or severe
as follows:
(1) Slight disability of muscles--(i) Type of injury.
Simple wound of muscle without debridement or infection.
(ii) History and complaint. Service department record
of superficial wound with brief treatment and return to
duty. Healing with good functional results. No cardinal
signs or symptoms of muscle disability as defined in
paragraph (c) of this section.
(iii) Objective findings. Minimal scar. No evidence of
fascial defect, atrophy, or impaired tonus. No impairment
of function or metallic fragments retained in muscle tissue.
(2) Moderate disability of muscles--(i) Type of injury.
Through and through or deep penetrating wound of short track
from a single bullet, small shell or shrapnel fragment,
without explosive effect of high velocity missile, residuals
of debridement, or prolonged infection.
(ii) History and complaint. Service department record
or other evidence of in-service treatment for the wound.
Record of consistent complaint of one or more of the
cardinal signs and symptoms of muscle disability as defined
in paragraph (c) of this section, particularly lowered
threshold of fatigue after average use, affecting the
particular functions controlled by the injured muscles.
(iii) Objective findings. Entrance and (if present)
exit scars, small or linear, indicating short track of
missile through muscle tissue. Some loss of deep fascia or
muscle substance or impairment of muscle tonus and loss of
power or lowered threshold of fatigue when compared to the
sound side.
(3) Moderately severe disability of muscles--(i) Type of
injury. Through and through or deep penetrating wound by
small high velocity missile or large low-velocity missile,
with debridement, prolonged infection, or sloughing of soft
parts, and intermuscular scarring.
(ii) History and complaint. Service department record
or other evidence showing hospitalization for a prolonged
period for treatment of wound. Record of consistent
complaint of cardinal signs and symptoms of muscle
disability as defined in paragraph (c) of this section and,
if present, evidence of inability to keep up with work
requirements.
(iii) Objective findings. Entrance and (if present)
exit scars indicating track of missile through one or more
muscle groups. Indications on palpation of loss of deep
fascia, muscle substance, or normal firm resistance of
muscles compared with sound side. Tests of strength and
endurance compared with sound side demonstrate positive
evidence of impairment.
(4) Severe disability of muscles--(i) Type of injury.
Through and through or deep penetrating wound due to high-
velocity missile, or large or multiple low velocity
missiles, or with shattering bone fracture or open
comminuted fracture with extensive debridement, prolonged
infection, or sloughing of soft parts, intermuscular binding
and scarring.
(ii) History and complaint. Service department record
or other evidence showing hospitalization for a prolonged
period for treatment of wound. Record of consistent
complaint of cardinal signs and symptoms of muscle
disability as defined in paragraph (c) of this section,
worse than those shown for moderately severe muscle
injuries, and, if present, evidence of inability to keep up
with work requirements.
(iii) Objective findings. Ragged, depressed and
adherent scars indicating wide damage to muscle groups in
missile track. Palpation shows loss of deep fascia or
muscle substance, or soft flabby muscles in wound area.
Muscles swell and harden abnormally in contraction. Tests
of strength, endurance, or coordinated movements compared
with the corresponding muscles of the uninjured side
indicate severe impairment of function. If present, the
following are also signs of severe muscle disability:
(A) X-ray evidence of minute multiple scattered foreign
bodies indicating intermuscular trauma and explosive effect
of the missile.
(B) Adhesion of scar to one of the long bones, scapula,
pelvic bones, sacrum or vertebrae, with epithelial sealing
over the bone rather than true skin covering in an area
where bone is normally protected by muscle.
(C) Diminished muscle excitability to pulsed electrical
current in electrodiagnostic tests.
(D) Visible or measurable atrophy.
(E) Adaptive contraction of an opposing group of
muscles.
(F) Atrophy of muscle groups not in the track of the
missile, particularly of the trapezius and serratus in
wounds of the shoulder girdle.
(G) Induration or atrophy of an entire muscle following
simple piercing by a projectile.
38 C.F.R. § 4.56 (2007)
Considering the history of the wrist injury in accordance
with 38 C.F.R. § 4.41, the service medical records contain
the report of a July 1969 X-ray study of the left wrist.
There was a metallic foreign body projected through the soft
tissues lateral to the distal shaft of the radius. A smaller
metallic foreign body was seen in the soft tissues just
lateral to the greater multiangular at the first metacarpal
joint. The osseous structures appeared intact.
On examination for release from active duty, in September
1969, the veteran's left wrist was evaluated. It was noted
that he had been wounded in Vietnam several months earlier
and had a metallic foreign body on the medial aspect of the
distal radius. His symptoms were minimal swelling and
minimal pain immediately over the area of the foreign body.
Examination disclosed a palpable foreign body approximately 2
inches proximal to the wrist joint, over the medial aspect of
the radius. Treatment options were discussed and the veteran
elected not to have the foreign body removed.
On VA examination in February 2002, the veteran reported
occasional aching over the left wrist. It did not prevent
normal duty or normal function. The examiner found a couple
of punctated wounds on the left wrist that were not
sensitive. No other swelling, redness, heat, or ulceration
were noted. There was no nerve, artery, bone, or muscle
damage. There was no muscle hernia and muscle strength was
normal. He had an excellent full range of motion in the left
wrist. The pertinent diagnosis was a residual shell fragment
wound to the left wrist.
When the veteran was examined by VA, in March 2006, he
reported having some aching and soreness in his left wrist
with repetitive use and weather changes. He was right
handed. He could do normal activities and no flare-ups were
identified. Examination disclosed a small punctuate wound on
the volar part of the wrist, with some tenderness there.
There was no swelling or deformity. Wrist motion was 70
degrees dorsiflexion, 80 degrees palmar flexion, 20 degrees
radial deviation, and 40 degrees ulnar deviation, with pain
just at the extremes of motion. Muscle strength, grip, and
grasp were normal. Repetitive use reportedly caused
increased aches, pains, soreness, tenderness and
fatigability; however the examiner considered any change in
the range of motion to be speculative. The diagnosis was
residual shell fragment wound of the left wrist with retained
foreign body.
At his May 2007 Board hearing, the veteran gave sworn
testimony of continued pain in his wrist and hand. He
reported that the pain woke him from sleep. It was noted
that surgery had been considered to remove the retained
fragment; however, it might make it worse.
Conclusion
There is no evidence of painful scarring or other disability
that would warrant a separate evaluation. 38 C.F.R. § 4.118.
The current 10 percent rating is appropriate for a moderate
wound with a retained foreign body. 38 C.F.R. § 4.73.
Higher ratings require objective evidence of muscle damage,
which has never been demonstrated in this case. Here, again,
the objective medical findings provide the preponderance of
evidence. Those findings demonstrate that the veteran's left
wrist does not have the scaring, or palpable loss of deep
fascia, muscle substance, or normal firm resistance of
muscles associated with a moderately severe or severe muscle
injury. Since the preponderance of evidence is against the
claim, the benefit of the doubt doctrine is not applicable
and the appeal must be denied. 38 U.S.C.A. § 5107(b);
Gilbert; Ortiz.
The Board has considered the issues raised by the Court in
Fenderson and whether staged ratings should be assigned. A
10 percent rating has been assigned from the date the claim
was received, the earliest date allowed by law. 38 U.S.C.A.
§ 5110 (West 2002); 38 C.F.R. § 3.400. The competent medical
evidence shows that at no time since the claim was received
has the disability exceeded the criteria for a 10 percent
rating.
Diabetic Retinopathy
The December 2003 rating decision granted service connection
for type II diabetes mellitus. A May 2005 rating decision
granted service connection for diabetic retinopathy,
evaluating it as part of the service-connected diabetes. The
20 percent rating for diabetes was continued by that
decision. The veteran disagreed, asserting that his eye
problems warrant a separate rating.
Damage to the retina may be rated as 10 percent disabling if
there are localized scars, atrophy, or irregularities of the
retina that are centrally located with irregular, duplicated,
enlarged or diminished images. 38 C.F.R. § 4.84a, Code 6011
(2007). Otherwise, eye impairment is rated on the basis of
impairment of central visual acuity. The best distant vision
after the best correction by glasses will be the basis for
rating. 38 C.F.R. § 4.75, 4.84a, Codes 6063-6079 (2007).
Visual impairment can also be rated on the basis of loss of
field of vision. 38 C.F.R. § 4.76, 6080, 6090 (2007).
The record contains reports and clinical notes from the
veteran's private eye care providers. In March 1999, P. M.
S., O.D., wrote that the veteran's best corrected visual
acuity was 20/25 in both eyes. Intraocular pressures were
normal. Pupil and extra ocular muscle functions were full.
Confrontational fields were intact. Slit lamp examination
revealed bilateral deep and quiet anterior chambers. Both
crystalline lenses had early nuclear sclerosis. Dilated
fundus examination disclosed normal cup to disc ratios. Both
nerves appeared well perfused without evidence of
neovascularization of the disc. Both maculae were intact.
There was no evidence of microaneurysms or hemorrhages in
either eye. The doctor reported that he found no evidence of
diabetic retinopathy in the veteran's eyes. At that time, he
only needed reading glasses.
In April 2000, Dr. P. M. S., reported the veteran's best
corrected visual acuity was 20/20 in each eye. A detailed
report concluded that there was no evidence of diabetic
retinopathy.
An August 2000 letter from Q. B. A., M.D., noted the removal
of a small papilloma from the right upper lid and right
lateral canthal region. The doctor did not identify any
residuals or relate it to the veteran's diabetes.
In November 2000, private optometrist, E. D. M., O.D.,
reported the veteran's best corrected visual acuity was
20/20, bilaterally. A detailed report is of record.
Diagnoses were diabetes mellitus, without retinopathy, early
cataracts of both eyes, and conjunctival melanosis of both
eyes.
In November 2002, Dr. E. D. M. diagnosed diabetes mellitus,
with mild non-proliferative diabetic retinopathy, left eye
greater than the right, cataracts of both eyes, and
conjunctival melanosis. Examination had shown a cup to disc
ratio of 0.35 on the right and 0.40 on the left. The nerve
fiber layer was normal and the vessels showed no
hemorrhaging. In the macular area of the left eye, there was
a small area of exudation superior to the foveal avascular
zone. The right macula was clear. The rest of the periphery
was unremarkable and flat. Best corrected visual acuity was
20/20, bilaterally.
In July 2003, the diagnosis from Dr. E. D. M. was diabetes
mellitus with mild non-proliferative retinopathy of the left
eye and cataracts of both eyes. The doctor commented that
the veteran's retinopathy was extraordinarily stable and had
not progressed since the previous examination. If anything,
his retinopathy appeared a little bit better, as the doctor
was not seeing any noted hemorrhages.
In November 2003, the veteran's best corrected vision was
20/20 in the right eye and 20/25 in the left eye. Diagnoses
by Dr. E. D. M. were diabetes mellitus with mild
non-proliferative retinopathy, left eye greater than the
right eye, and cataracts of both eyes. The doctor reported
that the only significant finding was the left macula
appeared to have an exudation outside of the foveal avascular
zone superior to the fovea. She explained that the veteran
appeared stable but because exudation was located so close to
the avascular zone, he should have further examination to
rule out clinically significant macular edema of the left
eye.
The veteran was seen by J. C. L., M.D., in December 2003.
The impression was mild non-proliferative diabetic
retinopathy and clinically significant macular edema of the
left eye. Laser treatment was provided. In April 2004, the
ophthalmologist reported that the veteran was 3 months post
laser treatment for diabetic macular edema in his left eye.
He had noted no changes in his vision. Visual acuity was
20/30 in both eyes, pinholing to 20/25. Corrected visual
acuity was not reported. Dilated fundoscopic examination in
the right eye revealed mild non-proliferative diabetic
retinopathy. The retinopathy was symmetric in the left eye.
The macular edema seen 3 months earlier was gone. There were
a few flecks of residual hard exudate but the thickening had
definitely cleared up. The impression was non-proliferative
diabetic retinopathy of both eyes, history of clinically
significant macular edema of the left eye - in remission, and
nuclear cataract of both eyes, mild and stable.
The veteran had a VA examination of his eyes in March 2006.
The medical records in the claims file were discussed. The
best corrected visual acuity was 20/25 in the right eye and
20/30 in the left eye. There was no diplopia. Extraocular
muscle movements were full. There was normal binocular
alignment of the eyes. There were no visual field deficits.
Pupillary testing was normal. Slit lamp examination revealed
a grade 1 nuclear sclerosis of the crystalline lens of both
eyes. Applanation tonometry measured 20 mm in the right eye
and 18 mm in the left eye. Dilated fundoscopy disclosed a
cup-to-disc ratio of 0.35 in both eyes. There were trace
microaneurysms in the foveal avascular zone in the left eye.
The posterior pole and mid periphery of both eyes showed
microaneurysms and scattered dot hemorrhages. There were a
few pinpoint exudates just outside the foveal avascular zone
of the left eye, as well as a patch of exudates in the
superior temporal arcade of the left eye. Chorioretinal
scars secondary to the focal laser were noted around the
foveal avascular zone of the left eye. The diagnoses were
non-proliferative diabetic retinopathy in both eyes,
chorioretinal scarring of the posterior pole secondary to
past focal laser in the left eye, and early cataracts in both
eyes. The examiner expressed the opinion that the first two
diagnoses were directly related to the veteran's diabetes;
while the cataracts were due to normal aging and not
associated with the veteran's diabetes.
In May 2007, the veteran gave sworn testimony at a Board
hearing. He emphasized that laser treatment was necessary to
stop bleeding in his eyes. He acknowledged that he was
supposed to wear reading glasses.
Conclusion
The private and VA medical reports show the veteran has some
visual deficits and has required laser surgery for treatment.
However, these same medical reports provide a preponderance
of evidence that shows his service-connected diabetic
retinopathy does not meet any applicable criteria for a
separate compensable rating. Specifically, the medical
reports establish that the scarring and irregularity is
minimal and does not result in irregular, duplicated,
enlarged or diminished images required for a compensable
rating under diagnostic code 6011. The veteran's worst
corrected visual acuity was 20/25 in the right eye and 20/30
in the left eye. This does not meet the criteria for a
compensable evaluation, which requires that the best
corrected visual acuity be 20/50 in one eye and 2/40 in the
other eye, or worse. 38 C.F.R. § 4.84a, Code 6079. There is
no limitation of the field of vision or other impairment of
eye sight that would warrant a compensable rating under any
applicable criteria. While the veteran may feel that his
visual impairment warrants a separate compensable evaluation,
the medical reports provide the most probative evidence and
provide a preponderance of evidence against the claim. As
the preponderance of evidence is against the claim, the
benefit of the doubt doctrine is not applicable and the
appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert;
Ortiz.
The Board has considered the issues raised by the Court in
Fenderson and whether staged ratings should be assigned. The
competent medical evidence shows that at no time since the
claim was received has the disability met any applicable
criteria for a separate compensable rating.
Left Ear Hearing Loss
Evaluations of unilateral defective hearing range from
noncompensable to 10 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies 1000, 2000, 3000 and 4000 cycles per second.
38 C.F.R. § 4.85(d) (2007). The rating schedule establishes
11 auditory acuity levels designated from level I for
essentially normal acuity through level XI for profound
deafness. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4,
including 38 C.F.R. § 4.85 and Code 6100 (2007). The
manifestations of a nonservice-connected disability may not
be used in evaluating a service-connected disability. 38
C.F.R. § 4.14 (2007). Consequently, if a claimant has
service-connected hearing loss in one ear and nonservice-
connected hearing loss in the other ear, the hearing in the
ear having nonservice-connected loss should be considered
normal for purposes of computing the service-connected
disability rating, unless the claimant is totally deaf in
both ears.. See VAOPGCPREC 32-97, August 29, 1997. Boyer v.
West, 11 Vet. App. 474 (1998).
On the authorized VA audiological evaluation for rating
purposes, in February 2004, pure tone thresholds, in
decibels, were as follows:
HERTZ
1000
2000
3000
4000
Average
Left
25
25
40
70
40
Speech audiometry revealed speech recognition ability of 80
percent in the service-connected ear.
The veteran testified, at his May 2007 Board hearing, of
decreased hearing and the possible need for hearing aids.
Conclusion
The Court has noted that the assignment of disability ratings
for hearing impairment are derived at by a mechanical
application of the numeric designations assigned after
audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992). In this case, the
audiometric findings of February 2004 produce a numeric
designation of "III" for the left ear. When this numeric
designation is applied to the rating criteria, the result is
a noncompensable rating. 38 C.F.R. Part 4, including § 4.85,
and Code 6100 (2007). While the veteran may feel that his
hearing deficits warrant a compensable rating, the findings
of the trained medical personnel based on appropriate testing
provide a preponderance of evidence against the claim.
Because the preponderance of evidence is against the claim,
the benefit of the doubt doctrine is not applicable and the
appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert;
Ortiz.
The Board has considered the issues raised by the Court in
Fenderson and whether staged ratings should be assigned. The
competent medical evidence shows that at no time since the
claim was received has the disability met any applicable
criteria for a compensable rating.
Other Criteria and Extraschedular Rating
For all the disabilities evaluated above, the potential
application of various provisions of Title 38 of the Code of
Federal Regulations (2007) have been considered whether or
not they were raised by the veteran as required by the
holding of the Court in Schafrath v. Derwinski, 1 Vet. App.
589, 593 (1991), including the provisions of 38 C.F.R.
§ 3.321(b)(1) (2007). The Board finds that the evidence of
record does not present such "an exceptional or unusual
disability picture as to render impractical the application
of the regular rating schedule standards." 38 C.F.R.
§ 3.321(b)(1) (2007). Although the veteran has reported
being unemployed for the last 6 years and has complained that
no one will hire a Vietnam veteran, the Board finds that
there has been no factual showing by the veteran that this
service-connected disability has actually resulted in marked
interference with employment or necessitated frequent periods
of hospitalization beyond that contemplated by the rating
schedule. In the absence of such factors, the Board finds
that the criteria for submission for assignment of an
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are
not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Service connection for a right ear hearing loss is denied.
Service connection for peripheral neuropathy of the upper and
lower extremities, bilaterally, is denied.
An initial disability rating in excess of 30 percent for PTSD
is denied.
An initial disability rating in excess of 10 percent for
residuals of a fragment wound of the dorsal spine, with
degenerative changes is denied.
An initial disability rating in excess of 10 percent for
residuals of a fragment wound of the left wrist, with
retained metallic foreign body is denied.
An initial separate compensable disability rating for
diabetic retinopathy is denied.
An initial compensable disability rating for a left ear
hearing loss is denied.
REMAND
The April 2004 RO decision denied service connection for
hypertension, as well as deciding other claims. For those
other claims, a September 2003 letter had provided timely
statutory notice. However, there is no mention of
hypertension in the September 2003 notice letter, the
December 2004 notice letter, or any other correspondence of
record. In Overton v. Nicholson, 20 Vet. App. 427 (2006),
the Court held that where the VCAA notice identifies several
issues claimed by the veteran, but leaves out one or more
other issues, that notice is inadequate with respect to those
issues not identified. Since there is no notice as to
hypertension, the holding in Overton drives us to conclude
that the notice is inadequate with respect to that issue, so
it must be remanded for proper notice.
While the further delay of this case is regrettable, due
process considerations require such action. Accordingly, the
issue of entitlement to service connection for hypertension
is REMANDED for the following action:
1. Notify the veteran of the
information and evidence necessary to
substantiate his claim for service
connection for hypertension, to include
notice pertaining to ratings and
effective dates as required by Dingess.
2. Thereafter, readjudicate the claim
for service connection for
hypertension. If the determination
remains unfavorable to the veteran, he
and his representative should be
furnished a supplemental statement of
the case which addresses all evidence
associated with the claims file since
the last statement of the case. The
veteran and his representative should
be afforded the applicable time period
in which to respond.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs